Secret Service, Immunity, Protestors, and Viewpoint Discrimination

By William Peacock, Esq. on November 27, 2013 2:55 PM

What's more important: free speech or the safety and security of the President?

Ideally, we'd have both, but the government is arguing, in a case granted review by the Supreme Court earlier this week, that a recent holding by the Ninth Circuit ensures that the President's security detail will be worried about lawsuits by protestors, rather than protecting the Commander-in-Chief.

The protestors sued, alleging viewpoint discrimination, after they were forced to move two blocks away from former President George W. Bush during a campaign trip in 2004, while supporters were able to remain closer. The Ninth Circuit denied immunity and allowed the lawsuit to proceed, stating that there was no reason, whatsoever, for the disparate treatment.

And much like the protestors want their voices to be heard, here is a roundup of various takes on the case:

The Trip

During a campaign trip in 2004 to Oregon, then-President George W. Bush made an unscheduled stop to grab dinner at a local restaurant. As part of their efforts to secure the area, the Secret Service required protestors to move away from the restaurant -- further away, in fact, than pro-Bush supporters. The protestors were also located off of the motorcade's route, ensuring that at no point were they seen or heard.

The protestors allege viewpoint discrimination. The Secret Service, on the other hand, argue that they are immune from suit and that they were merely securing the area.

The Manual

A particularly interesting piece of evidence of discriminatory intent comes from the Presidential Advance Manual, which directs the president's advance team to "work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route."

Now, as the dissent points out, the manual belongs to the advance team, not the Secret Service, who are the defendants here. It's an out-of-context manual that applies to a different group, but it does show some evidence of the government's policies and procedures.

The Ninth Circuit's Opinion

Judge Marsha S. Berzon, writing for the panel majority, noted that the government proffered no good reason for the blatant disparate treatment between pro- and anti-Bush groups:

"Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain along the president's after-dinner motorcade route."

The Dissent From En Banc Rehearing Denial

Eight judges signed on to the dissent, after the full Ninth Circuit denied an en banc rehearing of the case. Circuit Judge Diarmuid O'Scannlain, arguing that the majority failed to give sufficient latitude to those charged with protecting the life of the President wrote:

"In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the president to their newly created duty to act like concert ushers -- ensuring with tape-measure accuracy that everyone who wants to demonstrate near the president has an equally good view of the show."

The Solicitor General

Solicitor General Donald Verrilli, arguing in favor of certiorari, noted that the president makes hundreds of stops or appearances in public areas, and that the Secret Service needs immunity to be able to make snap decisions without fear of litigation, reports TheWashington Post.

"Such stops often require agents to make quick, on-the-spot decisions to safeguard the president in the presence of large groups of people," he wrote. He also argued that agents should not have to inquire about the political views of groups "to keep opposing groups at roughly equal distances from the president, even as his own location changes."

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